Wednesday, 26 November 2008

Despite Obama Victory, Will Supreme Court Justices Sit Tight?

At her law clerks' reunion last June, Supreme Court Justice Ruth Bader Ginsburg put the word out in no uncertain terms.

"If anyone asks you, 'When is she retiring?'" Ginsburg said, according to several who were there, "tell them I have a great role model in Justice [John Paul] Stevens, who is going strong at age 88."

Apparently, not enough people asked, so tucked away at the end of a speech at Columbia University on Oct. 25, she made the point again. Referring to the legendary Justice Louis Brandeis, Ginsburg said he "became a justice at age 60, as I did. He remained on the bench until age 83. My hope and expectation is to hold my office at least that long."

Now 75, Ginsburg would have to remain on the Court until 2016 to match Brandeis and 2021 to match Stevens.

Prognosticators and pundits have other ideas for her. Conventional wisdom, accelerated by Barack Obama's victory Nov. 4, has Ginsburg, Stevens and Justice David Souter, all on the moderate-liberal wing of the Court, heading for the exits during Obama's first term.

As the theory goes, all three justices would be happier being replaced under Democrat Obama than they would have been under Republicans John McCain or, for the last eight years, President George W. Bush. Names of possible replacements for the three are bandied about as often as candidates for Obama's Cabinet.

But as Ginsburg's broadly dropped hints suggest, justices don't always follow political timetables for their departures. They often remain as long as they feel their health and their work product are still good. The political persuasion of the president, while sometimes a factor justices consider in timing their departures, rarely is decisive.

"I don't think justices retire strategically, by and large," says University of Missouri-Kansas City political scientist David Atkinson, author of a book on why justices retire. "As long as they are in good health and feel happy and indispensable, they tend to stay."

Take David Souter, for example. According to a 2005 biography by Tinsley Yarbrough, Souter once told a friend that he has "the world's best job in the world's worst city." Souter heads to his beloved New Hampshire as soon as the Court's term is over in June and does not return until he has to in September. Friends portray him as eager to remain in New Hampshire year-round -- and ready to leave, now that a liberal has been elected to succeed Bush. But still vigorous at age 69, some of his friends insist he is willing to endure Washington a few years more.

Stevens, too, still is sharp and agile at 88 and, according to former clerks, has made comments similar to Ginsburg's about staying on the Court as long as he still enjoys writing his own opinions -- which he clearly still does.

That said, it is Stevens, perhaps more than other justices, who may view Obama's election as a signal at least to reconsider plans, according to one longtime friend who asked to remain anonymous.

Stevens is deeply loyal to his native Chicago, returning whenever he can to address Chicago bar groups and once throwing out the first ball at a Cubs game. One of his oldest Chicago friends is former congressman, appeals court judge, and White House counsel Abner Mikva, who is also a mentor and adviser to Obama. Obama's Chicago connections, as much as his politics, might increase Stevens' comfort level about retiring during Obama's tenure.

Such personal connections, while not determinative, count for something. When Byron White retired in 1993, he conveyed word to the Clinton White House, not through conventional channels but through one of his former clerks, Ron Klain, then an associate White House counsel. If Stevens wants to leave the Court under Obama, it might be Mikva who conveys the news to the new president.

Assuming that Stevens leaves the Court first for health or whatever reason, institutional constraints may also affect how many others leave, and when, according to Northern Illinois University political scientist Artemus Ward, who also wrote a book on Supreme Court retirements. Justices don't like to retire at a pace of more than one per term, so as to minimize the time the Court is at less than full strength. And they don't retire, unless absolutely necessary, during a presidential election year, to keep the vacancy from becoming a campaign issue.

As a result, Souter and Ginsburg may check with each other and with Stevens before making their own decisions during a window of opportunity that would shut in 2011, a year before the next presidential election.

Even for liberal Thurgood Marshall, one of the most political of all Supreme Court justices, politics did not determine when he left. He passed up President Jimmy Carter's term as a chance to retire. In 1980, after Ronald Reagan's election, rumors circulated that Marshall would resign immediately to allow the lame duck Carter to nominate his successor before Reagan was sworn in. Marshall angrily told a reporter, "I was appointed for life, and I intend to serve out my full term!"

Marshall remained on the Court in declining health until 1991, when he was replaced, to his chagrin, by President George H.W. Bush's nominee Clarence Thomas.